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16 Stan. L. & Pol'y Rev. 23 (2005)
Lawrence v. Texas & (and) the Refinement of Substantive Due Process

handle is hein.journals/stanlp16 and id is 27 raw text is: LAWRENCE V. TEXAS & THE REFINEMENT OF SUBSTANTIVE DUE PROCESS Matthew Colest INTRODUCTION ...................................................................................... . 23 I. THE DUE PROCESS ANALYSIS USED IN LAWRENCE V. TEXAS ................ 25 A. The Scheme of Substantive Due Process Analysis .................. 25 B. The Lawrence Holding & its Terminology: Rational Basis, Strict Scrutiny, or Protected Liberty? ................................ 27 C. The Court's Explanation in Lawrence: Rational Basis, Strict Scrutiny, or Protected Liberty? ......................................... 31 II. REFINING SUBSTANTIVE DUE PROCESS .............................................. 37 A. Toward a More Sophisticated Substantive Due Process A nalysis ............................................................................. 37 B. Reestablishing the Proper Role of History in Identifying Protected Liberty .............................................................. 42 III. CODA: THE RIGHT TO AUTONOMY & MARRIAGE ............................. 49 INTRODUCTION Lawrence v. Texas! was a major victory for the ongoing effort to end discrimination based on sexual orientation. Lawrence prohibited sodomy laws, which, whether they applied just to gay people like Texas's law or on their face applied to everyone, have long been used as a tool for discrimination against gay people.2 Lawrence also overturned Bowers v. Hardwick,3 which had been a t Matthew Coles (B.A. Yale University; J.D. University of California, Hastings College of the Law) has been the Director of the Lesbian and Gay Rights Project at the American Civil Liberties Union since 1995. Thanks to Nan Hunter, James Esseks, Leslie Cooper, Mark Sexton, Steve Shapiro, Ken Choe, Tamara Lange, and Robert Nakatani. 1. 539 U.S. 558, 567, 574-75 (2003). 2. See, e.g., Shahar v. Bowers, 114 F.3d 1097, 1104-45 (11th Cir. 1997) (involving a lesbian who had a wedding ceremony with her partner that was subsequently fired from her job as deputy attorney general because of the possible public perception that she violated the state's sodomy law); Weigand v. Houghton, 730 So. 2d 581, 591 (Miss. 1999) (denying a gay father custody because of his presumptive violation of the state's gender neutral sodomy law); Bottoms v. Bottoms, 457 S.E.2d 102, 108 (Va. 1995) (dealing with the same situation,

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